WILLIAM J. RUDOLPH, Employee, v. DALE GRUBER CONSTR., and MEADOWBROOK CLAIMS, Employer-Insurer/Appellants, and MINNESOTA DEP=T of EMPLOYMENT & ECON. SEC.,  CENTRA CARE CLINIC, ST. CLOUD ORTHOPEDIC ASSOCS., and ST. CLOUD HOSP., Intervenors.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 5, 2005

 

No. WC04-258

 

HEADNOTES

 

PRACTICE & PROCEDURE.  Where the first medical opinion linking a March 2004 surgery to the employee=s work injury was not offered until 10 days before the April 2004 hearing, the employee did not initially object to allowing the employer 30 days to obtain a supplemental medical report, and the compensation judge left the record open for 30 days, anyway, for submission of proposed findings, the compensation judge clearly abused his discretion in going forward with the issue of liability for surgery without allowing the employer to obtain a supplemental medical report.

 

Affirmed in part, vacated and remanded in part, and modified in part.

 

Determined by: Wilson, J., Pederson, J., and Rykken, J.

Compensation Judge: Danny P. Kelly

 

Attorneys:  Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Respondent.  Brian P. Thompson, Koll, Morrison, Charpentier & Hagstrom, St. Paul, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer appeals from the judge=s findings regarding a February 2004 surgery, temporary partial disability benefits, and penalties.  We affirm in part, vacate and remand in part, and modify in part.

 

BACKGROUND

 

On December 27, 2000, the employee fell three to four feet, while working for Dale Gruber Construction [the employer], injuring his left knee.  The employer was self-insured for workers= compensation purposes at that time.  Prior to his injury the employee had been diagnosed with rheumatoid arthritis, but it had not affected his knee prior to December 27, 2000.  During the course of x-rays and an MRI  following the work injury, it was determined that the employee also suffered from Paget=s disease.^[1]

 

The employee began treatment with orthopedist Dr. Michael Murphy on March 23, 2001.  Dr. Murphy=s initial diagnosis was probable posterior cruciate ligament tear with associated  posterior lateral rotation instability of his left knee, Paget=s disease of the left tibia, and a history of rheumatoid arthritis.  The employee was initially treated with a leg brace.  Due to the Paget=s disease, Dr. Murphy did not feel that the employee was a candidate for posterior cruciate ligament reconstruction, and he referred the employee to an endocrinologist for treatment of the Paget=s disease.

 

An MRI of the employee=s left knee was performed in September of 2001, and on January 18, 2002, when the employee continued to have knee pain, Dr. Murphy recommended an arthroscopic evaluation.  The employee filed a claim petition on May 6, 2002, seeking, in part, medical expenses for surgery and benefits for anticipated permanent partial disability.

 

On May 28, 2002, Dr. Murphy performed arthroscopic surgery on the employee=s left knee.  The procedure revealed very mild chondromalacia in the patella and trochlear groove and extensive chondromalacia in the lateral tibial plateau.  The employee had only mild improvement in his pain following this surgery, and Dr. Martin related the employee=s ongoing problems to the employee=s work injury.

 

The employee filed an amended claim petition on October 17, 2002, alleging, in part, that wage loss benefits had been underpaid and seeking medical expenses related to the surgery. 

 

Dr. Murphy administered a course of Hyalgan injections in November and December of 2002.  Six weeks after those injections, the employee was having more pain than ever.  Dr. Murphy then gave the employee the option of living with his current condition or undergoing a total knee arthroplasty.  The employee chose the arthroplasty, and surgery was performed on March 24, 2003.^[2]

 

On June 16, 2003, the employee amended his claim petition to include a claim for penalties under Minn. Stat. ' 176.225.

 

The employee=s pain moderated with the arthroplasty, but he continued to have recurrent effusions^[3] of his knee.  On December 3, 2003, December 12, 2003, and December 26, 2003, Dr. Murphy aspirated venous blood from the employee=s knee.  When seen by Dr. Murphy on February 9, 2004, the employee continued to have an effusion, at which point Dr. Murphy offered the employee the option of undergoing a left knee arthroscopy to look for the source of the bleeding.  An arthroscopy was performed on March 17, 2004, and the operative report reflects that there was no active bleeding within the employee=s knee at that time.  Dr. Murphy stated, AI am assuming the current hemarthrosis is coming from this hypertrophic synovial layer@ and AI felt, at this point, that the hypertrophic synovitis ^[4] is the most likely cause of his recurrent swelling and felt that this is probably due to his rheumatoid arthritis disease.@  When his deposition was taken on April 20, 2004, Dr. Murphy testified that the December 2000 work injury was a substantial contributing cause of the recurrent effusion and synovitis and of the need for arthroscopic surgery on March 17, 2004.

 

The claim petition came on for hearing on April 30, 2004.  At that time, the employee=s attorney stated, Awe would also like to try - - my client underwent surgery in February of this year, and those medical bills are outstanding.  We would like to try the issue to get those medical bills paid.@  The employer=s attorney objected and requested the opportunity to have the record left open so that an independent medical examiner could review Dr. Murphy=s recent causation opinion.  The judge denied the employer=s request, and, in a decision issued on August 2, 2004, found that the March 2004 arthroscopy was causally related to the work injury, that the employee had been temporarily partially disabled from September 12, 2003, through March 30, 2004, and that $15,002.68 in payments had been late, entitling the employee to a penalty of $4,500.80.  The employer appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  March 2004 Surgery

 

The employer contends that the compensation judge abused his discretion by denying the employer=s motion to keep the record open for thirty days for submission of a supplemental independent medical report.  We agree.

 

At the beginning of the hearing on April 30, 2004, when the employee requested that the issue of liability for the March 2004 surgery be heard, the employee=s attorney stated, AI would agree with you that time is short.  But one reason we should do this today is to get this over with.  If they want 30 days to get a supplemental report or something, I don=t have a problem with that.@  Subsequently, in his brief in support of the judge=s decision to go forward with the issue of liability for the March 2004 surgery and the judge=s refusal to leave the record open for a supplemental medical report, the employee stated that Athe medical evidence clearly supports that the knee condition was an ongoing problem as a result of the original work injury,@ citing to various exhibits introduced at trial.  We have reviewed those exhibits in their entirety and find nothing specifically tying the March 2004 surgery to the December 2000 work injury prior to the deposition of Dr. Murphy, which was taken ten days before the trial.  While the employee contended at hearing that Dr. Murphy=s office had contacted the employer for approval of the surgery before the surgery took place, that the adjustor had been provided with relevant medical records, and that the employer had denied the claim for surgery on March 1, 2004, there is no evidence in the record to that effect.

 

At the time of the March 17, 2004, surgery, the surgeon had specifically related the employee=s ongoing problems to his rheumatoid arthritis, and there was no medical support linking the March 2004 arthroscopy to the employee=s work injury until 10 days prior to hearing.  Clearly proceeding with the claim at the April 2004 hearing - - only six weeks after the surgery - - prejudiced the employer.  We cannot understand why the compensation judge refused to allow the employer thirty days to submit a supplemental report, given that the employee=s attorney did not initially object, especially since the judge left the record open for thirty days, anyway, for the submission of proposed findings.  Under these particular circumstances, we can only conclude that the compensation judge abused his discretion in going forward with the issue of liability for the March 2004 surgery.  We therefore vacate the findings related to that surgery and remand the matter to the judge for full litigation of the issue after the employer has had the opportunity to obtain a supplemental independent medical report.

 

2.  Temporary Partial Disability

 

The employer contends that the judge=s award of temporary partial disability benefits from September 12, 2003, through March 30, 2004 Aresulted from his abuse of discretion and is clearly erroneous.@  While the employer has presented no argument as to why the employee would not be entitled to temporary partial disability benefits from September 12, 2003, to March 17, 2004,  we agree that the issue of temporary partial disability after the March 2004 surgery was inappropriately tried.  We therefore affirm the award of temporary partial disability benefits from September 12, 2003, through March 16, 2004, vacate the award of temporary partial disability benefits from March 17, 2004, through March 30, 2004, and remand the latter issue to the compensation judge for hearing along with the issue of liability for the March 2004 surgery.

 

3.  Penalties

 

The employer contends that the compensation judge erred in calculating the penalty due for late payment of indemnity benefits, in that $4,209.85 was not the amount of a second late payment, contrary to the compensation judge=s finding.  We agree.

 

Respondents Exhibit 1 and Petitioner=s Exhibit L both reflect that the second late payment (made by the employer on April 9, 2004) was in the amount of $3830.18.  As such, the late payments amount, in total, to $14,623.01, which would result in a penalty of $4386.90, and not the $4500.80 awarded by the compensation judge.  The judge=s findings and order relating to penalties are therefore modified to reflect a penalty of $4386.90 for late payment of indemnity benefits.^[5]